Employer negligent: machine operated in unsafe mode

By Maria Karlsson-Lilas on
13 March 2018
A worker has been awarded almost $1.4 million in damages for injuries he sustained because his employer had not established safe standard operating instructions for a machine.

Manual lifting of steel bars

A worker operating a machine that bent and cut steel reinforcing bars injured his back on 20 May 2013. That morning, he bent between 13 and 19 bundles of four or five short bars each and then manually lifted them onto a finished goods table next to the machine. He suddenly felt a sharp pain and reported that he had pulled a muscle.

After smoko, he tried working again, but was too sore and went home. He was on light duties for the next few days. After seeing a doctor, he had some time off and was paid workers compensation according to the Workers’ Compensation and Injury Management Act 1981 (WA).

The worker’s back pain did not improve. Medical investigation showed that his back had a lytic spondylolisthesis, moderate disc narrowing and disc protrusion with impingement onto a conjoined right L5/S1 nerve root.

He underwent decompression surgery in August 2013 but then developed a ‘foot drop’ on the right side. Lumbar interbody fusion was performed in December 2013, followed in May 2015 by a further repair of the fusion surgery.

Between treatments, the worker underwent rehabilitation at work while he continued to suffer significant disabilities and pain. An optimistic medical opinion was that there was scope for him undertaking full-time employment in the future, though in a less physically demanding role. However, he was made redundant on 18 May 2016, and his workers compensation entitlements were exhausted on 18 August 2016.

In the District Court of Western Australia, the worker sought damages for his employer’s negligence. He alleged the employer had failed to assess the risks involved in the operation of the machine and failed to provide adequate equipment so he could carry out the operation safely and avoid having to lift the bars physically.

He also alleged the employer had failed to provide him with the necessary information, instructions, training and/or supervision. He had not been aware that he might have any back problems until the sharp pain appeared and had no reason to think the work he performed could cause him injury.

The employer’s position was that there was no evidence the method the worker used had posed a risk, and the court accepted that his way of working had been accepted practice at the workplace.

Two machine settings: a standard and an alternative

The evidence showed that the standard setting for operating the machine did not require the operator to lift the bent bars off because they could be automatically rolled or slid off. However, an alternative machine setting required the bars to be lifted off, and this setting had normally been used for bending/cutting shorter bars.

On the morning of 20 May 2013, the machine was already set up in the alternative mode. The worker did not reset it but merely began using it since he was processing shorter bars. He believed he was complying with his training and instructions.

The employer did not call any witnesses who could suggest that using the alternative machine setting had been safe.

There was no evidence the employer had carried out any assessment of the manual lifting required or had identified weight limits based on the size and number of bars to be lifted. Since lifting heavy items posed a foreseeable risk of injury to operators and the standard machine setting had not required manual lifting of the steel bars, Judge Braddock found that use of the alternative machine setting had been contrary to the standard operating instructions. The employer had breached its common law duty to take reasonable care for the safety of the worker.

Assessment of damages

Judge Braddock assessed the damages to be paid to the injured worker, who was only 33 years old at the time of the trial. The parties had agreed that the degree of his whole-person impairment was at least 25 per cent.

He was awarded a total of $1,389,300, which included $135,000 in general damages, $193,605 for past and future medical expenses and $609,625 for future loss of earning capacity.

A full court has allowed an appeal regarding the assessment of whole-person impairment. The case related to a worker who had sustained more than one injury and it had to be decided whether the impairments resulted from the same cause. Read more